Assuming the RTD story this morning is correct in the basic details, Richmond Commonwealth Attorney Mike Herring may indeed be thinking of running for Attorney General next year. Otherwise, I am not quite sure why he is handling the case of the ultrasound law protestors the way he is.

Assuming the unlawful assembly charge is under Code Section 18.2-406, this questionable statute requires that there be some “seriously” provocative situation likely to cause a serious break in public order. The Capitol Police never said that. Truth is, the laws and state regulations covering the Capitol grounds are unfair to the Capitol Police; they aren’t constitutional lawyers, just citizens like the rest of us having to deal with the aftermath of politically motivated laws which have nothing to do with ultrasounds and everything to do with wedge social politics, plain and simple. (There is a second trespass charge we discuss later on.)

Everyone with any political sense understands the ultrasound law is not motivated by concern with women’s health; those pushing the law made no such findings, nor could they. Informed consent already covered the information allegedly needed to justify the ultrasound mandate. Come on, let’s stop playing games with women needing to make the most personal of personal decisions. This is just plain wrong.

So as usual, the politicians drop the matter in the laps of ordinary women and police officers, and say, you deal with the fallout.

Now I recognize it isn’t Mike Herring’s job to address these issues. The mess has been dropped in his lap too, I get that. But he ran for the job. A prosecutor is supposed to do justice, not join in the politics. Someone, at some point, has got to stop passing the buck don’t you think? We are creating disrespect for our laws, how does this help?

Here are three things I would ask Mike to reconsider for the good of his office and the respect for the laws. I recognize he has the job of prosecutor and the police have arrested folks, I get that. But THIS IS NOT A CASE FOR CRIMINAL PROSECUTION even in terms of misdemeanors.

HE KNOWS THAT: So instead of polishing some “tough on crime” credentials for use in 2013 (yes, they would be helpful, but he doesn’t need it, his record’s hardly soft on crime, he is well respected in legal circles) I would ask him to consider a few things.

First: he is putting his office in a potentially bad light by asking Colette McEachin, the wife of Senator Donald McEachin, to try the cases of the 30 individuals arrested on the Capitol grounds.

The actions of the Capitol Police in arresting the protestors became a topic of hot discussion on the floor of the State Senate. The Senate helps control the budget of the Capitol Police. Fair or unfair, the actions of the Capitol Police will be part of the case should it go to trial. Indeed, as Mr. Herring himself concedes in the RTD today, this is a highly charged political case given the politics, protestors, and police action related to the controversial ultrasound law.

The Capitol grounds have been the site of protests for decades, especially over the civil rights of African Americans. The history of prosecuting African Americans for protesting – or preventing them from protesting – is well known. I remember Doug Wilder telling me stories about how he feared going anywhere near the Capitol Grounds, much less the Governor’s Mansion, when growing up.

We filmed some of Wilder’s first TV commercials on the very Capitol steps at issue in this case. As I read the state regulations pertaining to the exercise of the right to petition your government, there is no restriction against holding a protest at the Capitol steps, only the need to get permission from the appropriate state official.

Long story short — As a general rule, it doesn’t help the image of impartial administration of among the most sensitive and important rights we have to have the wife of a Senator try this kind of case. It is not fair to her, and not fair to ask her, to make the decision whether to handle the case.

The issue here is not fairness or impartiality, it is perception — and this requires a prosecutor not connected to the politics of the situation. It is not even really about this case, but about the next one. Finally, it is not about this prosecutor, but the next one.

I think it is unfair for Mike to put his deputy in this position, or to make one of the defendant’s lawyers have to struggle with whether he or she has an obligation to ask Colette to recuse herself because who knows what might happen in the court room.

Who needs that? It puts the Judge in a no-win spot as well.

Second: the charge of unlawful assembly doesn’t seem to fit the statutory requirement as indicated. There is no claim here of public order or safety being “seriously” at risk according to the statute. So why are these people being charged? Mike shouldn’t put that weight on the Judge or Colette. He should make the call himself.

Third: With regard to the issue of trespassing on the Capitol steps, I have held numerous press conferences at the steps, sometimes with more people and reporters than those protesting. It didn’t block or impede or threaten anything even when the grounds were wide open as they were prior to 9/11. Let’s not let Bin Laden and his Jihadists destroy the hallowed grounds of Mr. Jefferson’s capitol.

Any citizen can walk across the Capitol grounds. According to 18.2-406, three or more people gathered for the same purpose constitute a potential unlawful assembly.

As I said: I must have held dozens of such gatherings over the years just meeting with people to discuss how to win elections.

People used to do this all the time at the Capitol — sitting on the lawn, for instance. Technically, it was a “crime” to walk on the grass for years! They finally repealed that “crime” in 1998.

Mr. Herring says he believes the restrictions on free speech enforced at Mr. Jefferson’s Capitol are reasonable. Then he goes out of his way to say that if he wasn’t a prosecutor, he might be out there with the protestors.

How can he prosecute the case now in an impartial way after saying that, when he sounded like a politician trying to have it both ways? He needs to make a call, not punt the ball to others.

I know he is in a tough spot too. There is a law on the books and it must be enforced in a fair and impartial manner, although it needs to be improved fast.

So this is a case that cries out for the prosecutor to arrange for some kind of community service by the protestors, with the whole situation expunged from the record at a future date, provided things go as agreed.

No one is going to accuse Mike of being “soft on crime” if he does the right thing here. No one. These protestors did nothing to justify big fines and up to a year in the slammer. Mike knows it isn’t going to happen. So why waste taxpayer money on this?

Finally: Let’s put rules in place that are consistent with our great tradition, written by Virginians, regarding the right to petition your government for the redress of grievances. We need to lead the nation; our guy wrote the Declaration of Independence after all.

The Capitol Police have a tough job, and it seems to me the current rules make that job harder, not easier. That’s not fair to them or to the Commonwealth they serve so well.

Michael Herring is trying to give the McDonnell administration some political cover by making the charges look legitimate, instead of the gross violation of 1st amendment freedom of speech and freedom of assembly that it was. Herring isn’t a Democrat, he’s a “Democrat,” and he has both endorsed and contributed to Republican candidates in the past.

Democrats beware.

Bumble Bee

If I am not mistaken Commonwealth’s Attorney is an elected office. Should Mr. Herring continue to pursue this ill advised course he can be unelected next cycle.